When you and your spouse divorce, determinations must be made regarding how your shared property is to be divided between the two of you. There are two different legal principles that serve as a guide for making the determination.
Equitable Versus Equal Division
A small number of states apply the principle of community property, meaning that everything you and your spouse acquired together during the marriage undergoes a roughly 50-50 split. However, most states apply the principle of equitable distribution. This philosophy takes a number of factors into consideration when determining how to split the marital property fairly. These factors can become somewhat involved but can include considerations such as the duration of the marriage, the role that each spouse had to play, the contributions of each, and any indicators of fault for the marriage’s failure, such as infidelity or domestic abuse. Even in states that recognize no-fault divorce, if there is evidence that one spouse may have engaged in behavior that contributed to the breakdown of the relationship more than the other spouse’s behavior did, the latter spouse may receive a greater share of the marital property.
Separate Property Versus Marital Property
When determining equitable distribution, many states make a distinction between marital property and separate property. Generally speaking, anything that you acquired prior to the marriage is considered separate property, whereas the property that you and your spouse obtained together is marital property. Usually, only marital property is subject to equitable distribution, which means that you can generally expect to keep your separate property, although some exceptions may apply depending on the laws of your state.
Prenuptial Agreement Versus Property Distribution Laws
Property distribution laws only apply if you and your spouse are unable to come to an agreement regarding property division yourselves. There is no state law that forces a divorcing couple to divide property according to the principle of equitable division if they are able to work out a more fitting arrangement on their own. Therefore, if you and your spouse already have a prenuptial agreement in place outlining how your property is to be divided, that agreement takes precedence over equitable distribution laws. Similarly, you and your spouse may be able to negotiate the allocation of debts and assets outside of court through a process of alternative dispute resolution. This will need the court’s approval, but the court will not withhold it just because it does not follow the principle of equitable distribution.
Divorce is difficult to begin with, and the fact that each state has different laws can make it even more confusing. Consult with a family lawyer to find out more.